New York: Court of Appeals Holds Imprisoned Parents Have Visitation Rights - BY: Jamie F.

Case Link: http://www.nycourts.gov/ctapps/Decisions/2013/Apr13/Apr13.htm

  

In the case Granger v. Misercola, 72, being incarcerated is not enough on its own to loose visitation rights with a person's child during the imprisonment period. The New York Court of Appeals affirmed the Family Court's decision to allow the petitioner to have periodic four hour visitations with his child at the prison where he was being held.

The petitioner sought visitation with his child while he was in a New York prison. He wished to maintain a relationship that he had established with the child before imprisonment. The Family Court, based on the evidence, agreed and awarded him periodic four hour visitation with the child at the prison. The child's mother did not agree with this decision and the case was then heard by the Court of Appeals.

The Court of Appeals held that the lower court had correctly applied the standard while deciding this case. The courts held that there needs to be proper evidence that the visitation would be harmful to the child if they are to deny the visits. The court feels that it is a positive thing for a child to have visitation with a noncustodial parent whenever possible and that incarceration is not enough on its own to warrant a denial. The father was interested in and making efforts to maintain a good relationship with his child and continuing to have the visitations was in the best interests of the child in this case. Also, the respondent was unable to show proper evidence that the visitations would be harmful to the child's welfare. Therefore, the court found no reason to deny the request for the visits.

While this case was pending the petitioner was transferred to another prison that was further away from the child's home than the previous location had been. The child's mother then argued that the visitation request should be denied due to the longer distance that the child would need to travel in order to fulfill the visitation order. The court of Appeals thought that there was no evidence to suggest that the travel would be harms to the child in any way. Also, the court also held that the respondent should have filed a modification request with the Family Court rather than bringing this issue up during the appeal process. Therefore, the court did not take this matter into consideration when deciding if the visitation should be allowed.

In summary, the New York Court of Appeals holds that a parent who is imprisoned is still eligible to be granted visitation with their child while in prison unless preponderance of the evidence can prove that the visitations would be harmful to the child's welfare. The lower court's decision was affirmed.